______________________________ DENIED: December 16, 1993 ______________________________ GSBCA 12637-P RMTC SYSTEMS, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent, and INTERNATIONAL DATA PRODUCTS, CORPORATION, Intervenor. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. Col. Riggs L. Wilks, Jr., Maj. Charles R. Marvin, Jr., Maj. Karl M. Ellcessor, III, and Capt. Gerald P. Kohns, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. D. Oscar Fuster, Vice President of International Data Products, Corporation, Gaithersburg, MD, appearing for Intervenor. Before Board Judges DANIELS (Chairman), HENDLEY, and HYATT. HYATT, Board Judge. RMTC Systems, Inc. has protested the award of a contract by respondent, the Department of the Army, for the acquisition of automatic data processing (ADP) peripherals to upgrade Unisys 386 personal computers. The contract was awarded to International Data Products, Corporation (IDP), based on the Army's determination that IDP was the low cost, responsive bidder. RMTC's protest takes issue with the Army's determination that its lower-priced bid was nonresponsive. For the following reasons we deny the protest. Findings of Fact 1. Invitation for bids (IFB) number DASG62-93-B-0017 was issued by the U.S. Army Space Command in Colorado Springs, Colorado on August 25, 1993. The solicitation sought various computer peripheral components, on a brand name or equal basis, for the purpose of upgrading Unisys 386 personal computers, model number PW820-COP. The cover page of the IFB identified the procurement as a one hundred percent small business set-aside and directed the attention of potential bidders to the "Brand Name or Equal" clause in Section L. Protest File, Exhibit 3. Relevant Solicitation Clauses 2. The "Brand Name or Equal" clause in Section L stated as follows: (a) If items in this solicitation are identified as "brand name or equal," the term is intended to be descriptive not restrictive. The "brand name or equal" [term] is used to portray the characteristics and levels of quality that will satisfy the Government[']s needs. The salient physical, functional, and other characteristics which "equal" products must meet [are] specified in the solicitation. (b) To be considered for award, offers of "equal" products, including products (other than the "brand name" item) of the brand name manufacturer, must -- (1) Meet the salient physical, functional, and other characteristics specified in this solicitation; (2) Clearly identify the item by -- (i) Brand name, if any; by -- (ii) Make or model number; (3) Include descriptive literature such as cuts, illustrations, drawings, or a clear reference to previously furnished descriptive data or information available to the Contracting Officer; and (4) Clearly describe any modifications the Offeror plans to make it conform to the solicitation requirements. Mark any descriptive literature to clearly show the modifications. (c) The Contracting Officer will evaluate "equal" products on the basis of information furnished by the Offeror or identified in the offer and reasonably available to the Contracting Officer. The Contracting Officer is not responsible for locating or securing any information not identified in the offer and not reasonably available. (d) Unless the Offeror clearly indicates in the offer that the product being offered is an "equal" product, the Contracting Officer will consider the offer as offering a brand name product referenced in the solicitation. Protest File, Exhibit 3 at L-2. 3. Section M states the following evaluation procedure: The Government will award a contract to the responsive bidder whose bid, conforming to the solicitation, will be the most advantageous to the Government considering only price and price-related factors. This paragraph also refers the reader to a provision in section L entitled "Contract Award -- Commercial Items." This provision states: (a) The Government will evaluate offers in response to invitations for bid without discussions and will award a contract to the responsible offeror whose offer, conforming to the solicitation, will be most advantageous to the Government considering only price and the price-related factors specified in the solicitation. . . . . (d) The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitations. Unless otherwise provided in the schedule, offers may be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, unless the offeror specifies otherwise on the offer. Protest File, Exhibit 3 at L-2, M-1. 4. The specifications establishing salient characteristics for the items specified by brand name and part number are contained in Section C of the invitation: The offeror shall provide components in accordance with the "Brand Name or Equal" criteria, with the following minimum salient characteristics. All components must be 100 percent compatible with a Unisys 386 personal computer, model number PW820-Cop. 1) 3.5"/5.25" Dual Floppy Drive Combination. 2) Two (2) button serial mouse, Microsoft compatible. 3) Orchid Pro Designer 23 VGA Crd, 1024x768 resolution, 1MB RAM, 8 bit, and must be 100 percent compatible with ERDAS software version 7.5 for VGA systems. 4) QuarterDeck QEMM 386 6.0. 5) 21 inch Multi-Sync Color Monitor, non- interlaced with 1280 x 1024 resolution 6) 1.3GB 3.5 inch 10ms 256KB Cache SCSI hard drive. 7) ISA compatible SCSI Controller to be 100% compatible with 1.3BGB 3.5 inch SCSI internal hard drive. 8) Universal Frame Kit for a 3.5 inch 1.3 GB internal SCSI hard drive to fit a 5.25 inch bay for a Unisys PW820-COP PC. 9) 300 watt uninterruptible power supply. 10) Tecmar QT 250 ES 250MB External SCSI tape drive. 11) ISA SCSI Adapter. Item must be 100 percent compatible with Tecmar QT ES 250MB External SCSI Tape Drive. 12) 250 MB .25 inch tape cassette. Must be 100 percent compatible with Tecmar 250MB QT ES External SCSI Tape Drive. 13) SYSTOS Plus for DOS. 14) MS-DOS 6.0 Upgrade. Protest File, Exhibit 3 at C-1 through C-2. 5. Correlating to the specifications, section B of the IFB sets forth fifteen contract line item numbers (CLINs), listing the desired computer components by brand name and part number. Each CLIN includes a space for the offeror to list the specific item actually bid (whether the brand name or an "equal"). In the event an equal was bid, a space is provided for the offeror to enter the manufacturer's name, model number, and part number, as required under the Brand Name or Equal Clause of the solicitation. In addition, the IFB specifies quantities desired and a unit designation for each CLIN, with space to list a unit price and an extended total price for each CLIN. Protest File, Exhibit 3. RMTC's Bid 6. RMTC's submission contained a primary bid, with certain alternates and options. The bid was accompanied by explanatory "NOTES" contained in a cover letter. The various alternates and options were commingled in Section B with RMTC's primary bid, which the Army surmised to be the items and prices indicated in the spaces provided on the form. Protest File, Exhibits 6, 8. 7. In its primary bid, RMTC offered the brand name items for CLINs 0001, 0003, 0004, 0006, 0008, and 0009. RMTC did not specify any specific item in its primary bid for CLIN 0011, which sought an ISA SCSI adapter for the specified tape drive. Rather, the bid indicates that this item is included in CLIN 0007. The Notes appended to RMTC's cover letter indicate that RMTC proposes the following items: "11 ISA host adapter for tape drive," and state the following about this item: Either tape drive can be run off the same SCSI host adapter already provided in CLIN 0007 for the hard disk drive. A second host adapter is not required. In case a second host adapter is desired, RMTC offers a second Adaptec 1520 as a added cost option. Protest File, Exhibit 6. For CLIN 0011 in Section B of its bid, RMTC wrote "ALTERNATE: ADD'L SCSI ADAPTER" and listed a unit price of $75. No descriptive literature for this adapter is included with the bid, either for CLIN 0007 or for CLIN 0011, despite the fact that it is offered as an "equal" product in both CLINs. 8. Protester's bid offered items other than the brand name specified for CLIN 0002 (mouse), CLIN 0005 (monitor), CLIN 0007 (SCSI hard drive controller), CLIN 0010 (250 MB SCSI tape drive), CLIN 0012 (tapes for SCSI tape drive), and CLIN 0013 (tape drive software). Protest File, Exhibit 6. No descriptive literature for any of these items accompanied RMTC's bid. 9. In response to CLINs 0002 (MS serial mouse version 2.0 or equal) and 0005 (NEC 21" multi-sync color monitor, model 6FG) neither the bid nor the notes submitted by RMTC listed a manufacturer or model number for the "equal" product to be provided. For CLIN 0002 RMTC offered an "MS compatible mouse" and for CLIN 0005 RMTC offered an "RMTC 21" 1280 X 1024 NI." The notes merely stated that RMTC would provide products which met the specified salient characteristics. Protest File, Exhibit 6. 10. With respect to several CLINs, RMTC offered "alternate" products. In addition to CLIN 0011 (see finding 9), under CLIN 0010, for its "primary" bid, RMTC offered the Archive 2150S as the "equal" to the specified tape drive (Tecmar QT 250 ES External 250MG SCSI tape drive). In its notes, with respect to CLIN 0010, RMTC stated, however: The RMTC external 250 MB SCSI tape drive includes the following features: i. tape capacity: 150/250 MB ii. tape format: QIC,150 (same as Tecmar QT) iii. tape cartridge type: DC6150/DC6250 QIC iv. supported by SYSTOS Plus for DOS hardware (for interchangeability with tapes from Tecmar) v. external chassis with SCSI port vi. SCSI cable RMTC also offers the Tecmar make and model tape drive as an added cost alternate. Protest File, Exhibit 6. 11. Under CLIN 0013, Section B of RMTC's bid lists SYSTOS PLUS FOR DOS FOR RMTC TAPE DRIVE" as the offered product, despite the failure to list an "RMTC" tape drive anywhere else in Section B, or otherwise indicate any relation between the RMTC tape drive and the Archive 2150S tape drive offered in CLIN 0010. Under the same CLIN, RMTC's bid also contained the entry: "ALTERNATE: SYSTOS PLUS FOR DOS TECHMAR [sic] TAPE DRIVE." In contrast to other alternate entries in RMTC's bid, there is no price listed for the Tecmar software, nor do RMTC's notes indicate that the products were being offered at the same price. RMTC did not expressly offer Systos Plus for DOS for the Archive 2150S tape drive either in Section B of the bid or in the notes accompanying the bid. 12. Under CLIN 0012 (calling for DC-6250 250MB tape for Tecmar QT 250 ES external SCSI tape drive), Section B of the bid lists "DYSAN DY6250" as the offered product. The only description of this product provided by RMTC is in the bidder's notes, which stated merely that "RMTC will provide DC6250 style QIC cartridges that are fully compatible with both the RMTC and Tecmar tape drives." Protest File, Exhibit 6. Evaluation and Contract Award 13. At the direction of the contracting officer, an information systems management specialist reviewed the three low bidders' submissions for responsiveness to the technical requirements of the solicitation. He identified the following areas in which he concluded the RMTC bid did not conform to the requirements of the solicitation: a. RMTC Systems Incorporated did not provide descriptive literature, just contractor's notes. . . . (2.) Item # 2. No idea what manufacturer, make or model will be provided. Offeror stated a mouse would be provided. . . . (5.) Item # 5. No manufacturer, make, or model provided. . . . (7.) Item # 7. Bid Adaptec Model 1520. Government requirement was for an Adaptec model 1540. The model 1520 is not equivalent: (a) The 1540 has bus mastering capability, 5MB/second data transfer rate, supports disk drives over 1 gigabyte, and interrupts/addresses are software configured. (b) The 1520: (i) does not have bus mastering capability; (ii) has a 3MB/second data transfer rate; (iii) supports disk drives up to 1 gigabyte; and, (iv) interrupts/addresses are jumper configured. . . . (10.) Item # 10. Confusion on what's being bid. Contractor's section B states ARCHIVE 2150S or alternate Techmar QT-250ES. Contractor's letter states RMTC brand. (11.) Item # 11. Offeror advises that this item is not required with his proposed configuration, however, if we need it he will provide one, but doesn't state what "one" he will provide. (12.) Item # 12. No descriptive literature. Unable to determine equivalence. (13.) Item # 13. See comment on number 10. Have no idea what he's bidding on. (14.) Item # 14. Unclear what he's bidding on. As a result, the specialist recommended award to the next low bidder, IDP, which offered all brand name products. Protest File, Exhibit 8. 14. The award to IDP was made on September 30, 1993. Protest File, Exhibit 7. In a letter dated October 1, 1993, the contracting officer informed RMTC that its bid had been rejected as nonresponsive because "it failed to conform to the essential requirements of the solicitation" and it "failed to provide adequate descriptive literature for all items pursuant to the requirements of the Brand Name or Equal provision." Protest File, Exhibit 9. Discussion The Army's principal contention is that RMTC, in those instances where it did not offer the brand name product, either did not identify the manufacturer or model number for those items or did not provide sufficient information to permit a determination that the product offered was an "equal," or both. The Army argues that the "notes" appended to RMTC's bid, which did little more than parrot the specifications, did not cure the lack of descriptive data. In several instances, the agency further urges, discrepancies between the bid as stated in Section B, when compared to RMTC's notes, resulted in ambiguity either as to the product offered or price. Thus, the Army maintains, since the Government evaluator was not able to verify whether RMTC's bid actually complied with the specifications in all material respects, the bid was properly rejected as nonresponsive. RMTC disagrees, asserting that the technical evaluator did not need make and model information to determine responsiveness. In addition, RMTC contends that the ambiguities and inconsistencies asserted by the Army are without merit and that its bid contained sufficient information, when construed in light of "commonly understood industry standards," to support the conclusion that the bid was responsive.[foot #] 1 The test of responsiveness is not "whether the offeror is objectively capable of meeting the Government's requirements," ----------- FOOTNOTE BEGINS --------- [foot #] 1 This protest was submitted for decision on the record. Rule 11. The Board's order scheduling record submissions provided that evidentiary submissions were to be exchanged one week prior to the briefs. Protester, in submitting its brief, included an affidavit and a letter concerning the Microsoft mouse. The Army moved to strike these materials as untimely submitted. Protester responded that it had misunderstood the significance of the Board's order providing for a prior exchange of evidentiary materials, and indicated that certain information had not been available earlier. In addition, protester noted that the Army had been alerted to the substance of these materials. Although the Army's motion is well-taken, we conclude that the error appears to have been made in good faith and the materials submitted are such that respondent will not be prejudiced by their inclusion as part of the record in this protest. ----------- FOOTNOTE ENDS ----------- but rather "whether it has represented in its offer that it can and will do so." Memopro Inc., GSBCA 8264-P, 86-1 BCA 18,702, 1986 BPD 6. This test imposes an affirmative obligation on the bidder to demonstrate equivalency; blanket statements of compliance are inadequate: To be responsive to a brand name or equal solicitation, bids offering equal products must conform to the salient characteristics of the brand name equipment listed in the solicitation. Tri Tool, Inc., B-233153, Jan. 25, 1989, 89-1 CPD 84. A bidder must submit with its bid sufficient descriptive literature to establish that its offered equal product is either identical or equal to the brand name product. Astro- Med, Inc., B-233695.2, June 12, 1989, 89-1 CPD 552. If the solicitation or other information available to the contracting activity does not show compliance with the solicitation requirements, the bid must be rejected. HEDCO, Hughes Electronic Devices Corp., B- 221332, Apr. 7, 1986, 86-1 CPD 339. Moreover, blanket statements of compliance or the bidder's belief that its product is functionally equal to the brand name product are not enough; rather, the protester must affirmatively demonstrate the equivalency. AZTEK, Inc., B-229897, Mar. 25, 1988, 88-1 CPD 308. BRS & Associates, Inc., B-236883, 89-2 CPD 539 (Dec. 11, 1989), at 2. In this case, with respect to several of the "equal" items bid, RMTC simply did not provide enough information to demonstrate that the item was functionally equivalent to the name brand. See RMTC Systems, Inc., GSBCA 11450-P, 92-1 BCA 24,592, 1991 BPD 315. The Microsoft Compatible Serial Mouse RMTC did not provide any brand name, make or model information, or descriptive literature regarding its proposed mouse. In Section B, for CLIN 0002, RMTC offered an "MS compatible mouse." In its notes, protester stated solely that a "Microsoft compatible serial mouse with at least two buttons would be provided." Finding 9. At the same time, the Brand Name or Equal Clause required that bidders clearly identify a proposed "equal" item by brand name, if any, and by make or model number, and supply descriptive literature. Although the requirement for brand name information is qualified, the requirement for make or model information and descriptive literature is not. Finding 2. The absence of any information informing the Army as to the actual mouse that would be supplied prevented an independent determination of RMTC's proposed product's compliance with the salient characteristics. It was not sufficient for RMTC to promise to provide a mouse that met the salient characteristics. RMTC Systems, 92-1 BCA at 122,703, 1991 BPD 315, at 7 (by offering an "Intel compatible" processor in response to name brand or equal solicitation calling for Intel processor and providing no detail of what processor would be supplied, RMTC "t[ook] . . . exception to a solicitation requirement"). As the Board has previously explained, the Government must determine whether a bidder's offer complies with specifications in a solicitation: The need for verification derives from the fact that an offer of an item by reference to a make and model delimits the bidder's performance obligation to furnishing the specific item offered. In other words, it is the Government's burden to determine from the literature furnished with the bid whether or not the item is consistent with the functional specifications. . . . Rocky Mountain Trading Co., GSBCA 8941-P, 87-2 BCA 19,841 at 100,414, 1987 BPD 81, at 5-6; see also Smith-Midland Corp., B-252394.2, 93-2 CPD 50 (Jul. 23, 1993) (procuring agency is responsible for evaluating the required descriptive literature submitted by offerors of equal items and ascertaining if it provides sufficient information to determine whether the offered items are in fact equal to the brand name products). The Army properly concluded that this item as bid was nonresponsive. The Multi-Sync Color Monitor CLIN 0005 called for a "NEC 21" multi-sync color monitor, model 6FG." Findings 4, 9. RMTC responded in Section B that it would provide an "RMTC 21" 1280 X 1024" monitor. In its notes it stated that the monitor provided would feature the resolution required in the specifications. Finding 9. As in the case of the mouse, protester offered no specific model or manufacturer information or descriptive literature. Protester argues, in its brief and evidentiary submissions, that information such as a manufacturer's name and model number is not material to a determination of whether functional specifications are met. This argument is no more persuasive in the case of the monitor than it was with respect to the mouse. Protester vigorously argues that this information should not be required because the manufacturer of the monitors it purchases through distributors is often unknown. This is beside the point. The information is required by the clause. Moreover, protester could have, but did not, submit descriptive literature. In the absence of any information that would permit the contracting officer to reach an informed conclusion that the product offered was "equal" to the specified brand name item, respondent's rejection of the bid was proper. RMTC Systems, Inc. v. Defense Mapping Agency, GSBCA 12636-P (Dec. 16, 1993). The Hard Disk Drive Adapter RMTC also claims that the Army erred in determining that the product proposed under CLIN 0007, the Adaptec 1520 hard disk drive adapter, was not "equal" to the Adaptec 1540 controller specified in that CLIN. The Army counters that the contracting officer, relying on information provided by RMTC and other information reasonably available, was unable to determine whether the Adaptec 1520 met the salient specification. CLIN 0007 calls for an "Adaptec SCSI Controller, Model 1540, GTSI P/N 899-278, or equal." Section C of the IFB, which listed the minimum salient characteristics, required an "ISA Compatible SCSI Controller to be 100% compatible with 1.3GB 3.5 inch SCSI internal hard drive." (emphasis added). In response, RMTC offered an "Adaptec 1520." No descriptive literature concerning this product was provided by RMTC, but in its notes RMTC vaguely suggested that this adapter was "capable of supporting . . . the offered Conner internal hard disk drive . . . ." (emphasis added).[foot #] 2 The Brand Name or Equal Clause requires the contracting officer to "evaluate 'equal' products on the basis of information furnished by the offeror or identified in the offer and reasonably available to the Contracting Officer." The Clause does not require the contracting officer to "locat[e] or secur[e] any information not identified in the offer and reasonably available." Finding 2. Applying the information available to him, the Army's technical evaluator concluded that the 1520 was not equivalent to the 1540: (a) The 1540 has bus mastering capability; has a 3MB/second data transfer rate and interrupts/addresses are software configured. (b) The 1520: (i) does not have bus mastering capability; (ii) has a 3MB/second data transfer rate; (iii) supports disk drives up to 1 gigabyte; and, (iv) interrupts/addresses are jumper configured. ----------- FOOTNOTE BEGINS --------- [foot #] 2 RMTC's departure from the precise language of Section C's requirement is notable for two reasons. First, in response to nearly every other CLIN, RMTC exactly mimics the language of the salient characteristics. Thus, its failure to do so here appears to be significant. Second, "capable of supporting" is not necessarily the equivalent of "100% compatibility." Quite possibly a device could be "capable of supporting" another and yet not be 100% compatible with it. At the least, "capable of supporting" is unclear and ambiguous. ----------- FOOTNOTE ENDS ----------- Finding 13. We conclude that the Army properly determined, on the basis of the information it had, that the Adaptec 1520 was not "equal" to the Adaptec 1540 for purposes of this procurement. This was based on the Army's conclusion, undisputed by any information provided with RMTC's bid, that RMTC's offered product could only support 1GB of the 1.3 GB hard disk drive.[foot #] 3 Although RMTC elucidates in its brief that the Adaptec 1520 it offered is bundled with software that enables the product to support disk drives that are larger than one gigabyte, there is no reference to this software in its bid or in the notes provided.[foot #] 4 Again, it is immaterial that RMTC can show, in this protest, that the product would have met the Government's specification. RMTC did not meet its affirmative obligation to supply the information necessary to enable the Government to determine that this was the case. The Government need not risk "acceptance of specifically named products which do not meet its specifications." Rocky Mountain Trading Co. - Systems Division, GSBCA 10163-P, 90-1 BCA 22,281, at 111,922, 1989 BPD 276, at 7; see Discount Machinery & Equipment, Inc., B-252889, 93-2 CPD 59 (Jul. 27, 1993) (bid of equal items under brand name or equal IFB is nonresponsive where bid failed to include sufficient descriptive literature to demonstrate equal items complied with salient characteristics listed in solicitation). Although the Army has raised other, less significant, points concerning this bid, based on the deficiencies discussed above, we conclude that the Army properly rejected RMTC's bid. It is not, therefore, necessary to address whether the various other issues addressed by the technical evaluator similarly justified the Army's decision to reject this bid. Decision ----------- FOOTNOTE BEGINS --------- [foot #] 3 We note that specifications such as data transfer rate, bus mastering capability, and the software configurability of interrupts/addresses do not bear on responsiveness because the Army did not list these properties as minimum salient characteristics. [foot #] 4 Although RMTC points us to literature, included in Exhibit 8 of the Protest File, that describes the Adaptec product and the particular software that enables it to support larger disk drives, this literature appears to have been obtained by the Army on October 15, 1993, two days after the filing of the protest. As such, it does not establish that the Army had any basis to determine during the conduct of the procurement that the item as bid by RMTC was functionally equivalent to the Adaptec 1540. ----------- FOOTNOTE ENDS ----------- The protest is DENIED. The suspension of the Army's delegation of procurement authority lapses by its terms. _____________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ _____________________________ STEPHEN M. DANIELS JAMES W. HENDLEY Board Judge Board Judge